Stokley v. Ryan, No. 09-99004 (9-26-11) (McKeown with Paez and Bea).

The 9th affirms the denial of a capital habeas asking for an evidentiary hearing on IAC. The panel sidestepped Pinhoslter. Whether Pinholster limited review to the record before the state courts on post-conviction, or whether the new evidence that was developed and presented to the federal courts, did not matter. The high standard of Strickland would bar relief under either analysis.

U.S. v. Sykes, No. 10-50399 (9-26-11) (Alarcon with O'Scannlain and Silverman).

The defendant received a resentencing under the crack guidelines. However, retroactive relief only applied to the Guidelines and not to the mandatory minimum sentence of 10 years. His sentence of 120 months (down from 121 months) stood because he had been informed of the mandatory minimum when he plead, and the mandatory minimum, even without an Apprendi amount listed, still controlled.

U.S. v. Perelman, No. 10-10571 (9-26-11) (Graber with Hug and Silverman).

The defendant fraudulently obtained and wore a Purple Heart. He also managed to bilk the Veterans Administration out of $180,000 in disability payments. Charged with 18 USC 704(a), the unauthorized wearing of military medals, defendant raises a broad First Amendment challenge. The 9th reads into the statute the requirement that the medal is worn with an intent to deceive, and thus limits the statute's reach from applying to actors, widows, and protestors and so forth.

U.S. v. Chung, No. 10-50074 (9-26-11) (Graber with Goodwin and Kleinfeld).

The defendant stole economic secrets from Boeing and sold them to China. He was charged with violating the Economic Espionage Act, false statements, and failing to register as a foreign agent. The 9th found sufficient evidence to affirm the convictions. The 9th also found no Brady violation, as the exculpatory evidence disclosed late could still be used. The 9th rejected numerous evidentiary challenges. Finally, the 9th upheld the use of the sentencing guideline for "national defense information" as the most analogous. The information stolen need not be held by the government.